The owners of two flocks of imported sheep suspected of having either bovine spongiform encephalopathy or a foreign form of scrapie must turn the animals over to the USDA-APHIS, a federal judge ruled in February.
One week after the ruling, however, the plaintiffs filed motions requesting a stay that would prevent the USDA from removing the sheep pending additional court actions. A ruling on the motions is expected March 6, and USDA officials said they would wait until then to seize the sheep.
If the stay is not granted, the Feb 6 ruling will end a seven-month legal battle between the Vermont sheep owners and the government agency. In the ruling, a Vermont district court judge refused to overturn a July 2000 Order of Extraordinary Emergency by former Agriculture Secretary Dan Glickman, thereby compelling the owners to sell their sheep to the USDA.
"This court ... has determined that the secretary's proposed action is amply supported by current, authoritative scientific evidence," Judge J. Garvan Murtha wrote in his opinion.
The animals in question are two of three flocks of sheep, most of them East Friesian milk sheep, imported to Vermont from Belgium and the Netherlands in 1996. Since the animals entered the country, the USDA has tracked the movement of the original flocks and their offspring as part of the voluntary scrapie eradication program.
In 1998, the European Union's Scientific Steering Committee declared it was highly likely European sheep had been exposed to BSE-contaminated feed, and veterinary officials quarantined the three Vermont flocks. On July 10, 2000, four sheep from the flocks tested positive for a transmissible spongiform encephalopathy on a western blot test. Since then, the USDA has been attempting to purchase the animals, euthanatize them, and safely incinerate them.
The owner of one flock of 21 sheep sold them voluntarily for a fair market price. But the other owners—Houghton Freeman and Larry and Linda Faillace, with a combined total of 355 sheep—pursued legal action against Glickman's order, claiming the tests used by the USDA were flawed. The USDA maintains that the tests are accepted methodologies backed up in scientific literature.
According to the USDA, the only test that can determine the difference between scrapie and BSE is a bioassay involving injecting mice with infectious material, a method that takes several years to produce results. Although scrapie has not been shown to pose a threat to human health, scientists believe BSE is linked to new variant Creutzfeldt-Jakob disease, a human TSE. USDA officials say seizure of the sheep is justified because they may be infected with BSE and, thus, a threat to humans and other animals.
The judge ruled that the agency proved its actions were warranted, on the basis of several "troubling suggestions" in the USDA administrative record. Particularly disconcerting, he said, is that BSE appears to infect more tissues in sheep than cattle and may spread from one sheep to another without the feeding of infected ruminant tissue.
Judge Murtha agreed with the USDA that leaving the sheep with the owners would expose the United States to an unacceptable risk of human disease, because even those members of the flocks that tested negative could be incubating a TSE that would spread if the sheep were sold to other parts of the country.
"We are gratified that the judge validated our position," said Dr. Linda Detwiler, senior staff veterinarian for the USDA-APHIS.